McMullan v. Kroger Co.

• Citation: 84 Ga.App. 195,65 S.E.2d 420
• Decision Date: 25 May 1951
• Docket Number: No. 1,No. 33492,33492,1
• Parties: McMULLAN v. KROGER CO
• Court: United States Court of Appeals (Georgia)

Page 420

65 S.E.2d 420

84 Ga.App. 195

McMULLAN v. KROGER CO.

No. 33492.

Court of Appeals of Georgia, Division No. 1.

May 25, 1951.

Rehearing Denied June 9, 1951.

Syllabus by the Court

1. It is well settled law that questions of negligence, proximate cause, and failure to exercise ordinary care to avoid the consequences of another's negligence are questions of fact which are ordinarily for determination by a jury, but in plain and indisputable cases, such as the case at bar, the court may determine them as a matter of law.

2. The only reasonable inference from the allegations of the petition is that the structure on the defendant's premises was such as could have been seen by the plaintiff in the exercise of ordinary care, and that the alleged injury was the result of the failure on the part of the plaintiff to exercise such degree of care for his own safety.

3. The petition failed to set out a cause of action, and the trial judge did not err in sustaining the general demurrer and dismissing the action.

Northcutt & Edwards, Atlanta, for plaintiff in error.

T. Elton Drake, John M. Williams, Atlanta, for defendant in error.

SUTTON, Chief Judge.

J. J. McMullan filed his petition against The Kroger Company seeking to recover damages for personal injuries sustained by reason of the defendant's negligence. The petition was twice amended, and the defendant filed and renewed a general demurrer thereto. The trial judge sustained the demurrer, and the plaintiff excepts to that judgment.

The facts set out in the petition are, in substance, as follows: The defendant maintains a grocery store on the west side of Church Street in East Point, Georgia, and had conducted business with the public there for over a year prior to the date when the plaintiff was injured. The defendant maintains a parking lot next to the store and on the same side of the street. A sign on the side of the building facing the parking lot reads, 'Kroger Customers Free Parking.' A sidewalk separates the store and parking lot from Church Street, and the parking lot and sidewalk are on the same level. Along the base of the wall of the store building which faces the parking lot, there is an elevated platform, 2 1/2 feet wide, and extending the length of the building. The height of this platform above the surface of the parking lot is not alleged. In the corner of the lot formed by this platform and the sidewalk along Church Street, there is a triangular concrete bar. This bar extends along the sidewalk from the 2 1/2 foot platform for a distance of 5 feet. The bar is 3 1/2 inches high at the platform, and rises to a height of 6 inches at its other end. It had been placed there several months before the plaintiff was injured. The bar, the platform, the parking lot and the sidewalk were all made of cement, having a uniform color and appearance. At 5:45 p. m. on March 17, 1950, the plaintiff went to the store to purchase groceries. He parked his automobile in the second parking space from the concrete bar, next to an automobile which occupied the first space, nearest the concrete bar. Both cars were headed toward the store building. The plaintiff went into the store; he never saw the bar, and his view of it when he entered the store was obstructed by the automobile parked between his car and the concrete bar. This car was moved away while the plaintiff was in the store. The plaintiff purchased groceries, which the defendant's employees placed in large paper sacks and handed to the plaintiff. He proceeded out the front door, his arms filled with the sacks which he was taking to his automobile. As the plaintiff left the store carrying his groceries, it is alleged that he did not see the concrete bar between him and the parking lot, and could not have seen it by the exercise of ordinary care, but his foot contacted it. He stumbled over the bar, was thrown onto the concrete surface, and sustained a fractured hip and other injuries. The plaintiff had not been warned by the defendant of the existence and location of the bar, and as he turned toward his automobile, he could see the elevation, color and appearance of the sidewalk and parking lot beyond the bar, 'but he could not by the use of ordinary care while carrying large sacks of groceries see the concrete bar which was immediately next to him.' There was no guard rail or other protective device of any kind to warn the plaintiff of the location of the bar. The store and parking lot were arranged so as to make the lot appear to be of easy access from the store. The arrangement of the premises and the location of the bar without a guard rail or protective device of any kind, in a position where customers laden with groceries would normally cross it to go to and from the store to their parked automobiles, constituted a deceptive trap which caused the plaintiff to stumble and fall on the bar.

The plaintiff charged the defendant with negligence...